At the time of the dissolution in 1993, wife suffered from a back injury that
she had sustained in a 1978 automobile accident. During the dissolution proceeding, she
requested temporary spousal support. Wife was not working at the time and had no other
source of income. She argued that her potential income was limited because of her back
injury. Additionally, wife argued that she could not work while husband argued that wife
could work. The parties entered into a stipulated spousal support settlement. That
settlement was incorporated into the dissolution judgment and required husband to pay
spousal support to wife for eight years, beginning at the rate of $800 per month and
decreasing every two years. The dissolution judgment provided that husband was to
make his final payment in April 2001.

Sometime between 1997 and 2000, wife suffered spinal fractures. In 2000,
wife's doctors determined that she should not work and the Social Security
Administration (SSA) determined that she was totally disabled. In 2001, wife moved for
modification of the dissolution judgment to provide for permanent spousal support at the
rate of $1,300 per month. In support of that motion, wife stated that, since the
modification of husband's support obligation in 1994, "there have been substantial
changes in my financial circumstances and abilities." Specifically, wife stated:

"At the time the original decree was entered and at the time of the
modification of the decree, I had degenerative back problems but was not
restricted from employment. In both March and September of 2000, I had
two episodes where my back broke because of activity."

The trial court concluded that there had been a substantial and unanticipated
change in circumstances. Specifically, the trial court found that, although wife "was
aware that she had back problems at the time of the dissolution in 1993, she was not
aware of the compression fractures or that she would be totally disabled." The trial court
modified the spousal support award to $800 a month. On appeal, husband challenges the
conclusion that wife has experienced a substantial change of circumstances.

"(2) In a proceeding under this section to reconsider the spousal or
child support provisions of the decree, the following provisions apply:

"(a) A substantial change in economic circumstances of a party,
which may include, but is not limited to, a substantial change in the cost of
reasonable and necessary expenses to either party, is sufficient for the court
to reconsider its order of support[.]"

The parties do not discuss the statute. They do, however, dispute whether
wife's change in circumstances is both substantial and unanticipated. The arguments that
the parties make, though not directly citing the statute, work within the framework of
ORS 107.135 and relate to this court's construction of that statute.

Although the term "unanticipated" does not apply to this case through
operation of the statute, for many years Oregon case law has required a substantial and
unanticipated change in circumstances before a court can modify an award of spousal
support. Thomas and Thomas, 160 Or App 365, 371, 981 P2d 382 (1999); Johnson v.
McKenzie, 100 Or App 640, 643, 787 P2d 1306 (1990) ("A party moving for modification
of spousal support must show, not only a substantial change of circumstances, but also
that the change was not contemplated at the time of the judgment of dissolution."). Under
that standard, wife is entitled to modification of the support award.

The trial court found that wife's change in circumstances was substantial.
The trial court's letter opinion states, in part:

"The Court's been referred to Fellows [and] Fellows, 124 Or App
476, [8]62 P2d 1325 [(1993)], which deals with circumstances similar to
this case. The Court finds that although [wife] was aware that she had
back problems at the time of the dissolution in 1993, she was not aware of
the compression fractures or that she would be totally disabled. It is
obvious that she does not have the ability to earn income and that she's
currently living at a level far below that when the parties were still married.
This constitutes as a substantial change of circumstances."

(Emphasis added.)

Wife testified that she was not totally disabled at the time of dissolution in 1993,
but that she is now totally disabled and that her physician and the SSA concurred with
that assessment. Wife's testimony regarding her outlook at the time of the dissolution was
as follows:

"[COUNSEL]: In 1993, did you have an expectation that you could
work?

"[WIFE]: In my heart of hearts, yes.

"[COUNSEL]: Did you anticipate then that this back problem would
result in you not being able to get employment?

"[WIFE]: No. I knew it would be limited employment due to it, but
I didn't think that I would wind up being totally disabled, no."

Even if the parties were aware of one spouse's health problems at the time
of the first modification, an unanticipated deterioration of that spouse's physical condition
can constitute an unanticipated change in circumstances. Fellows, 124 Or App at 478; see
also Tomos, 165 Or App at 88-89 (although the wife was partially disabled before the
original support award, she also suffered from illnesses arising after the dissolution,
which, although not fully disabling, constituted a substantial change in circumstances). In
this case, wife's description of her physical condition at the time of dissolution differs
significantly from that of her current physical condition. At the time of dissolution, wife
stated that she was "disabled." At the time of dissolution, wife said that, due to her
disability, her potential income was "minimal" and her employment options were "[v]ery,
very, very limited." Furthermore, wife's condition did not prevent her from selling used
furniture on consignment after the dissolution or taking care of the parties' cattle.
However, wife is no longer working and her testimony is that she is now "unable to
work" and "unable to earn any form of income." Though wife was not working at the
time of dissolution, there is a material difference between being able to work and
becoming unable to work.

Again, this case is similar to Fellows. At the time of dissolution in Fellows,
the

"wife acknowledged that she had osteoporosis and that she did not know
how much longer she could work. After the dissolution * * * [t]he
osteoporosis spread * * *. Her expenditures for prescription medication
have increased * * *. Nothing in the record suggests that her condition will
improve. Wife's ability to continue working is in doubt."

124 Or App at 478. This case is similar because, here, wife acknowledged at the time of
dissolution that she was disabled and that her ability to work was minimal. Wife earned
some income after the dissolution. Since the time of trial, however, wife's illness has
worsened and she is now no longer able to work. Nothing in the record suggests that wife
will improve. In Fellows, we ultimately held that, even if one spouse is ill at the time of
dissolution, if that illness unanticipatedly becomes more severe and nothing in the record
suggests that the spouse will improve, modification of spousal support is warranted.

The dissent argues that Fellows is inapposite because that case dealt with a
modification of the duration of support and whether the evidence in Fellows satisfied the
"substantial and unanticipated" standard was not at issue because "[t]he wife appealed,
arguing that the support should be permanent; the husband did not cross-appeal." ___ Or
App at ___ n 2 (Linder, J., dissenting) (slip op at 6 n 2). The dissent is correct that the
specific issue in Fellows was whether the court should modify the duration of the support
award. However, this court reviews spousal support awards de novo and, before a court
will modify a support award in either duration or amount, the court must satisfy itself that
the party requesting modification has met the threshold determination of a substantial and
unanticipated change of circumstances. Thus, the determination in Fellows that the wife's
change in circumstances warranted a modification of the duration necessarily included a
determination that the wife's change in circumstances was substantial and unanticipated.

Wife has suffered a substantial change in economic circumstances. At the
time of dissolution she was able to work, if only in a very limited way. At the time she
requested modification, wife was totally disabled and unable to work at all. That change
in circumstances was unanticipated. Although she had suffered a back injury at the time
of dissolution, she did not anticipate suffering further injuries.

Affirmed.

LINDER, J., dissenting.

The majority correctly acknowledges the legal standard that wife must
satisfy to warrant modification of her spousal support award: a substantial and
unanticipated change in economic circumstances. ORS 107.135(2)(a); Thomas and
Thomas, 160 Or App 365, 371, 981 P2d 382 (1999). The majority's resolution of this
case, however, is not faithful to that standard. The record does not establish that the
degeneration of wife's back condition has changed her economic circumstances in either a
substantial or unanticipated way. Accordingly, I dissent.

Before the parties reached a settlement on spousal support, wife petitioned
the court for temporary support. In support of that request, she submitted an affidavit in
which she stated the following:

"* * * I am disabled. I have applied for disability with the State of
Oregon. I have no other source of income. * * *

"* * * Because I am disabled, my potential income is minimal. * * *
If my husband dies, I will have no means of support. I believe my husband
should pay me permanent spousal support * * *."

(Emphasis added.) Relying on that affidavit, the trial court awarded wife temporary
spousal support, specifically finding that wife was not then employed and had not been
employed for six years before the support award.

After the trial court's award of temporary spousal support, the parties
entered into settlement negotiations on the amount and duration of spousal support. Wife
took the position that she was "disabled" as the result of her degenerative back condition
and had no income. To establish her disability, she was prepared to offer the expert
opinions of three physicians who would have testified that, at that time (i.e., 1993), she
was unable to work. According to husband, wife's inability to work was accounted for in
arriving at the settlement for support. Significantly, wife did not testify to the contrary
nor did she offer any evidence to challenge or contradict husband's testimony in that
regard.

The questions now must be: what has changed and why? In the majority's
view, what has changed is that wife has gone from having some limited ability to work to
having none. As for why, the majority finds that wife's back condition has degenerated in
a way that no one expected at the time of the dissolution. With respect, the record not
only fails to adequately support the majority's conclusions in those regards, it
affirmatively refutes them.

In determining that wife had some ability to engage in income-producing
work at the time of dissolution, the majority relies heavily on wife's statements at the
modification hearing that she hoped to be able to work and that, in her "heart of hearts,"
she did not believe that her degenerative back condition would leave her "totally
disabled." ___
Or App at ___
(slip op at 4-5). But the majority's reliance on that
testimony in that regard is too selective and requires disregarding evidence that we are not
free to disregard. In particular, the evidence is undisputed that, despite wife's "hopes," (1)
several of wife's doctors advised her at the time of the dissolution (i.e., in 1993) that she
could no longer work due to her degenerative back condition; (2) wife took the position in
her affidavit to the court in 1993 that she was disabled to such a degree that, without
either government disability payments or her husband's support payments, she would have
"no means of support"; and (3) wife specifically agreed at the time of the hearing in this
case that the statements in that 1993 affidavit were true when made and have proved
correct. If wife's statements are to be the source of a conclusion that her condition has
changed, then all of her statements must be considered, including her sworn statements in
1993, which should be judicially binding.

The majority also relies on wife's post-dissolution activities. Specifically,
the majority points to wife's attempt to sell antiques on consignment and the fact that she
cared for the parties' cows at the time of dissolution. ___
Or App at ___
n 5, ___
(slip op
at 5 n 5, 5-6). In that regard, it is worth emphasizing that wife did not state in her 1993
affidavit that she could not engage in activity of any kind; she said only that she could not
produce income. Time proved her to be correct. Although wife hoped that selling
antiques would provide some supplemental income, it did not do so and instead "wound
up more of a hobby." Nor did wife earn, or expect to earn, any income tending the
family's small herd of cows. She took care of the cattle out of necessity--that is, because
no one else in the family was available to do so--and despite the considerable pain it
caused her. In terms of wife's abilities to engage in either of those activities, nothing in
the record suggests any change. Wife did not claim she could not still attempt to sell
antiques on consignment; her point was that no significant income would come from it.
Where tending cattle is concerned, wife specifically testified that she could probably still
take care of the cattle if the need arose, although it would still cause her pain. The
majority's reliance on those activities is thus misplaced. They were neither income-producing activities nor activities that show a change in wife's abilities.

Turning to wife's present condition, the majority accurately notes that wife
has suffered two spinal fractures since the dissolution, that wife's doctors have told her
that she is unable to work, and that she now receives total disability payments from the
federal government (SSI). But given wife's condition at the time of dissolution, those
changes do not support a conclusion that the deterioration of her back condition has
changed her economic circumstances in any way. Although wife has suffered two
additional spinal compression fractures since 1993, the advice that wife's doctors have
given her about not working is the same advice they gave her in 1993: she was not
physically able to work before, and she is not physically able to work now. In other
words, her physical condition has degenerated further, but her inability to engage in
income-producing work did not arise for the first time as a result of that further
degeneration. As for wife's federal SSI award, nothing in the record suggests that wife
could not have obtained that award in 1993. If anything, the record suggests the contrary.
Wife specifically testified that she did not apply for an SSI benefit until her spousal
support ran out. When she did apply, she succeeded. Wife was candid in that regard,
testifying that she does not like accepting SSI benefits because she does not believe that
taxpayers should have to support her. If the modification results in a permanent award of
spousal support, she intends to discontinue her SSI.

Thus, although the record establishes that wife's degenerative back
condition has continued to degenerate, the record does not support a conclusion that
wife's ability to earn an income has changed as a result. Nor, more importantly, does it
establish a substantial change in her ability. The majority finds a substantial change in
the difference between the "little or no income" that wife said she could earn in 1993 and
the "no income" that she says she can earn now. That is a difference of, at best,
semantics, not substance, and even the semantic difference has no real support on this
record. The majority all but reads "substantial" out of the test for modifying a spousal
support award.

In granting the modification, although the trial court made the requisite
findings, it appears to have been motivated as much or more by its after-the-fact regret
that it modified the spousal support when husband became unemployed in 1994: "In
retrospect, after listening to the testimony in this case, the Court believes that the Court
reduced the spousal support more than it should have been at the time." The trial court's
concern is hard to fault, and the majority may share it. But a modification may not serve
as a mechanism to relitigate an earlier spousal support award. Thomas and Thomas, 181
Or App 128, 134, 45 P3d 954 (2002). Given the lack of evidence of a substantial and
unanticipated change in wife's circumstances, wife's petition for modification should have
been denied.

Although, as the dissent points out, wife stated that she would be able to
care for the cattle at the present time, it would be with different consequences. Wife stated that
she would be able to take care of cattle with disability to herself. Thus, wife is no longer able to
care for cattle to the same extent that she was at the time of dissolution. She no longer has the
same physical ability, as shown by her doctor stating that she should not work.